Legislative and Regulatory Reform Bill - Standing Committee A

[Sir Nicholas Winterton in the Chair]

Legislative and Regulatory Reform Bill

Nicholas Winterton: Order. I am back in the Chair and I am sure that good progress will continue to be made, as it was under my co-Chairman, Mr. Caton.

Clause 10 - Procedure: introductory

Amendment proposed [this day]: No. 52, in clause 10, page 5, line 12, at end add—
‘(3)A Minister may not make an order under section 1 where, within the 21 day period, fifty members of the House of Commons signify to the Speaker in writing that they object to the use of this Act to make the order.’.—[David Howarth.]

Question again proposed, That the amendment be made.

Nicholas Winterton: I remind the Committee that with this we are discussing the following amendments: No. 53, in clause 10, page 5, line 12, at end add—
‘(4)A Minister may not make an order under section 1 where, within the 21 day period, either House of Parliament resolves that it objects to the use of this Act to make the order.’.
No. 54, in clause 10, page 5, line 12, at end add—
‘(5)A Minister may not make an order under section 1 where, within the 21 day period, a committee of the House of Commons charged with reporting on the order resolves that it objects to the use of this Act to make the order.’.

Jim Murphy: Thank you, Sir Nicholas. You will not be aware that this morning I was in the process of belatedly welcoming the hon. Member for Forest of Dean (Mr. Harper) to his place on the Front Bench, because the Committee was in error in not having done so earlier. We are delighted to have him in his place, as we are to have you in yours. We have made good progress in your absence—those two facts are not connected. I assume that when you appeared on “Question Time” you were not asked about our Bill; otherwise, you would not still be our esteemed co-Chairman. I did not have a chance to see your appearance—

Nicholas Winterton: It is on video.

Jim Murphy: I am more of a DVD man. However, from what I hear nobody could accuse you of not having stood by your friends or your principles in your appearance. I was delayed by virtue of the fact that I had to travel to Glasgow, so was not able to watch the programme.
I had commenced my comments on clause 10 stand part, and on amendments Nos. 52, 53 and 54, which were tabled by the hon. Member for Cambridge (David Howarth). The clause introduces the procedural requirements that apply to all orders. An order cannot be made unless all those requirements are met. The procedural requirements introduced by the clause are as follows. First, all orders must be made by statutory instrument. Secondly, the Minister must consult in accordance with the requirements of clause 11 and, after consultation, must lay a draft order and explanatory document before Parliament in accordance with the requirements of clause 12. Finally, the order must be made in accordance with one of the three types of parliamentary procedure provided for in the Bill, and we shall discuss those under later clauses.
Without seeking to reinterpret the words of the hon. Member for Cambridge, I would describe amendments Nos. 53 and 54 as an attempt to define or describe a veto. The hon. Gentleman is aware that we made a commitment in an earlier sitting of this Committee to include a veto in the Bill, and it is important that we do so. The Government will make a specific proposal based on that principle before we debate the issue on Report. I know that that commitment has reassured a number of Committee members. That being the case, I invite the hon. Gentleman to withdraw the amendment.

David Howarth: I fully understand the Minister’s commitment to bring forward what has been called in the past a Committee veto, which would cover the ground of amendment No. 54. Can he confirm that he also intends to include in his consideration of what he is calling a veto the ground covered by amendment No. 53, which is a veto for either House, as opposed to a Committee of the House?

Jim Murphy: Without seeking to commit myself in a prescriptive manner, I shall be happy to discuss the matter with the relevant Front Benchers and with the Chairs of the relevant Select Committees in the House of Commons before we reach Report. On that basis, I can reassure the hon. Gentleman.

Christopher Chope: Is the Minister indicating that he is prepared to accept a veto that would incorporate hon. Members other than members of the relevant Committee? If so, does he think that the amendment tabled by the hon. Member for Cambridge is a pretty good stab at a veto, and the sort of thing that he has in mind?

Jim Murphy: I agree that it is a stab at a veto; whether it is a pretty good stab is something that we shall discuss before Report with the Opposition parties and the relevant Select Committee Chairmen in the House of Commons. Of course, the Regulatory Reform Committee declared an interest and offered some comments, and the hon. Member for Cambridge offered some criticism about conversations with the Front Bench; however, I hope that he will be reassured by the fact that there will also be conversations with  the relevant Select Committee Chairmen. Also, he should not mock his Front Bench in the middle of a reshuffle of his own party. We shall see whether he remains on the Back Benches as the reshuffle works its way through the Liberal Democrat party.
I am sorry to say that I do not have anything so conciliatory to say about amendment No. 52. I hope that that will not create discord in the midst of the consensus that may be developing about discussing the hon. Gentleman’s ideas and some possible principles in the context of amendments Nos. 53 and 54. My difficulty is with the attempt to define what is controversial simply according to the number of Members of Parliament who would sign a declaration of their opinion. Our approach would be to determine the degree of controversy case by case by reference to the content of the proposal or order, rather than by an arbitrary number. The hon. Gentleman fully accepts that it is an arbitrary number. He and the hon. Member for Christchurch (Mr. Chope) had some discussion on that, and about the idea of setting the number at one.
It would not be appropriate to define what was controversial by the number of Members of Parliament who would sign up to any suggestion contrary to what was proposed, in preference to dealing with such decisions on a case-by-case basis.

David Howarth: If the Minister does not like the way of dealing with the problem of controversial matters that is set out in amendment No. 52, can he offer another definition of the word “controversial” that we could include in the Bill? So far he has been using the word in a context that assumes that Ministers make the decision and proceed accordingly, with no external check.

Jim Murphy: With respect to the hon. Gentleman, I am doing no such thing. Determination of whether something is controversial would come about first by public consultation—statutory public consultation, which I think the hon. Gentleman welcomes. The Minister would then prepare an explanatory memorandum, responding to the statutory public consultation. That explanatory memorandum, and the decision that the Minister would take about tabling an order, would be open to legal challenge. The Select Committee involvement and the detailed veto principles are an additional way in which constraints and controls could be imposed for highly controversial orders. All sorts of procedural conditions and the preconditions in clause 3 would prevent what the hon. Gentleman has talked about in relation to highly controversial matters.
We are attracted to the principle of a veto, but to define what is highly controversial as the hon. Gentleman is trying to do, by means of an arbitrary number of Members of Parliament—50 Members—is not the right way to go about it. You will be aware, Sir Nicholas, of all sorts of worthy, and some less worthy, early-day motions that have no difficulty in attracting 50 signatures of Members of Parliament. Some are important and some are perhaps less substantive. My hon. Friend the Member for Edmonton (Mr. Love)  alluded, perhaps uncharitably, to the possibility that accepting the number 50 in the provision would enable the Liberal Democrat party, with its 56 Members of Parliament—[Hon. Members: “Sixty-four.”] Is it 64? There you are. Perhaps that should be the number for a veto. Anyway, my hon. Friend thought that the number of Members specified in the amendment might make a party political veto by the Liberal Democrat party possible.

David Heath: Is it entirely unreasonable that a substantial political party in Parliament should be able to ask it to determine a matter that should properly be dealt with by primary legislation in Parliament, rather than by a Minister with a hole-in-the-corner order system?

Jim Murphy: That is in no way what we intend; in fact, it is a parody of our intention. I know that the hon. Gentleman could not be here for the earlier discussion on clause 13, for a good reason. However, to have an arbitrary number of Members of Parliament, based on no science or identifiable logic, is not the way to define higher degrees of controversy in an order. There are other ways to do so—the preconditions in clause 3 and the procedural protections—rather than an arbitrary number.

Christopher Chope: Could the Minister draw an analogy with what happens on the Security Council? Countries have permanent representation on the Security Council, and only one at any one time can exercise a veto. Does he believe that if one political party represented in this Parliament exercised a veto, that would be effective?

Jim Murphy: Sir Nicholas, you would rightly chastise me if I sought to draw an analogy between our consideration today and the General Assembly or Security Council of the United Nations. I do not think that it would be an effective veto to write into the Bill that one political party should have the right of veto. The hon. Member for Bethnal Green and Bow (Mr. Galloway) represents a political party, and we are not suggesting that his party would have the right of veto over any order.

David Heath: Does the Minister appreciate that his proposals would allow one political party the right of veto over whether something will be debated on the Floor of the House? The Government party will have that right in its Committee, which will determine whether a matter is controversial.

Jim Murphy: That point ignores the culture and dynamism of the way in which the Regulatory Reform Committee works. If the hon. Gentleman wants to assert that the Regulatory Reform Committee in the House of Commons and the Delegated Powers and Regulatory Reform Committee in the House of Lords operate in a party political manner, I will give him the opportunity to make that point. However, they do not. No one has made that assertion, and I do not suggest that the hon. Gentleman should do so with any great confidence or to any great merit this afternoon.
The specific issues raised by amendments Nos. 53 and 54 will be included in our conversation with the Front Bench spokesmen of both the Conservative and the Liberal Democrat parties. We will consider them further with the Chairs of the relevant Select Committees. However, at this early stage I would like to suggest that the idea of an arbitrary number of Members of Parliament having the opportunity to exercise the veto in the way suggested in amendment No. 52 is not the correct way to proceed. There is an established way of identifying orders that might be highly controversial, involving statutory public consultation and a Minister’s assessment of that.

Douglas Carswell: If the Bill passes without the amendment, what will be the point of having Members of Parliament and having elections for them if law can be made, amended and changed without reference to anyone who is vulnerable at the ballot box? The amendment would ensure that someone who was vulnerable at the ballot box could determine what could or could not be put through on the nod under the Bill.

Jim Murphy: The hon. Gentleman is aware that members of Select Committees in this place are Members of Parliament. They carry out that function in a highly effective way. We have members of the Regulatory Reform Committee in our Committee today. Members of Parliament from all parties in that Committee do a sterling job in considering specific proposals.
We are concerned that only 27 orders have been enacted under the 2001 Act. The Select Committee rejected the civil registration regulatory reform order, and that is an example of when the Government responded to the concerns of the majority of the Committee in a sensible and proportionate way, case by case. I gave evidence to the Regulatory Reform Committee towards the end of last year. There were no Conservatives in the Committee that day. That is unfortunate, but it is just the way that this place works. The hon. Gentleman is aware that the members of that Committee take their responsibilities very seriously and no one, until just now, has suggested that they do not.

David Heath: Does the Minister not understand that I intend no criticism of the existing Committee? That is not the purpose of passing a Bill through a Standing Committee. It is to make the law that will apply to the parliamentary system in the future. We may have a very different Government in future and a very different Committee. They would only have to be mildly different from the present Government to be essentially malign in their intent. That is why we must get this right. It is not a criticism of the hon. Member for Plymouth, Devonport (Alison Seabeck) and her colleagues on the Committee, who do an excellent job.

Jim Murphy: My hon. Friend the Member for Plymouth, Devonport is delighted by that compliment as is my hon. Friend the Member for Edmonton, who served on the Committee with great honour and who unfortunately lost out this time round.
We must get this right. That is why we are committed to the principle of having a veto. That is why we will have detailed discussions with Opposition parties and the Select Committee Chairs so that we get the veto right. However, plucking an arbitrary number of Members of Parliament from the air does not get this right. There are protections in clause 3 in terms of the preconditions. There is the statutory public consultation to which I was referring when the hon. Member for Somerton and Frome (Mr. Heath) rightly intervened. The Minister must respond to that consultation by laying an explanatory memorandum. If the Minister makes an assessment that differs from the conclusions of the public consultation it is open to legal challenge.
On top of those protections the Select Committees of both Houses will have the power to reject or to amend a proposal. We will have a conversation about the principle of the veto and an amendment to include an operational veto in the Bill will be tabled in time for Report. All those protections will enable a case-by-case assessment to be made about what is highly controversial and what is not. To set an arbitrary number would not be the proportionate or effective way to do it. In the spirit of my earlier comments I ask the hon. Member for Cambridge to withdraw his amendment. If he seeks to press amendment No. 52 to a Division I will ask my hon. Friends to oppose it on the basis that it is an arbitrary figure based on no science or methodology.

Nicholas Winterton: Before I call the hon. Member for Cambridge might I suggest that before he sits down he should indicate whether he will press his amendment or withdraw it?

David Howarth: Thank you for that guidance, which I shall follow. I accept the Minister’s assurances on amendments Nos. 53 and 54 that he will come together with the other Front Benches to find an acceptable way of putting into the Bill a method by which Committees and the Houses themselves might reject the use of the Bill for a particular order. I will not press those amendments to a vote. Amendment No. 52 is slightly different.
The Minister appears to be saying two things: first, there is the question that has divided us in our discussions about almost every clause, which is whether the other protections in the Bill are adequate. The Minister again referred to clause 3, but did not meet our criticism that that clause is drafted so subjectively that there would be no effective check on a ministerial decision if the Minister considered that the conditions in the clause were satisfied. This morning, we had a rather complex discussion about whether the Human Rights Act 1998 might apply to any such decision with regard to subsection (2). I hope that the  Minister meant what he said then because, as I said at the time, it gives us an opportunity to move a further amendment on Report.
Adding to that this afternoon, the Minister referred to the consultation process. He said that if a Minister disagreed with the weight of material coming to him after a consultation, that would somehow be reviewable in the courts. It seems to me that if the Minister ignored the consultation process altogether and paid no attention to its results, that would be reviewable, but we are dealing with something different. We are talking about a Minister who, in the time-honoured phrase, “hears what they say” when the consultees come to him to say that they disagree, but who continues on the same path to make the order. That does not seem obviously reviewable by the courts.
The point that I made in response to the comments of the hon. Member for Edmonton still applies. We are dealing with a Bill of very great scope. It is different from the Regulatory Reform Act 2001. In those circumstances, it is self-evident that we should seek formal requirements in the Bill, rather than relying on informal arrangements or on the Minister’s good sense.
The Minister’s first reason for rejecting amendment No. 52 is that the procedures are adequate. However, it remains the view among Opposition Members—universally, I think—that the procedures and protections are not adequate. I remind the Minister of the fundamental point that even those procedures could be removed using an order under this legislation.
The Minister’s second reason for disagreeing with the amendment is that the way in which it is set up is not inadequate, in two respects. First, one single party could encourage its members to come together to block the use of the procedure in the legislation. My hon. Friend the Member for Somerton and Frome challenged the assertion that that would somehow be improper. A single political party with 50 hon. Members would seem to represent a substantial section of public opinion and might therefore be entitled to respect for its view that a proposed order was controversial. Nevertheless, I accept that it might command wider support in the House to propose instead of amendment No. 52 a slightly different mechanism that required hon. Members of more than one party to write to the Speaker as the amendment suggests. In that way, we could guarantee that it was not a partisan, party political complaint about the use of the procedure, but a broader concern.

Christopher Chope: Does the hon. Gentleman share my disappointment that he is almost having to resort to debating with himself, because the Minister is not willing to engage with him and to suggest, for example, what he is suggesting at the moment?

David Howarth: Yes, it strikes me as odd that Opposition Members have to play the part of both Government and Opposition. [Interruption.] As my hon. Friend the Member for Somerton and Frome says, it does increase the quality of the debate if we stick to debating among ourselves.
The second point was about the number of hon. Members required to object. As I said in moving the amendment, I am not wedded to the figure of 50; I suggested it as a starting point for thought. The hon. Member for Edmonton and the Minister pointed out that that number would mean that any one of three parties could meet the requirement by itself. I am willing to accept a different figure. The question is what percentage of Members of Parliament we should consider as indicative that a proposal being brought forward under the Bill was controversial. A figure of 10 per cent., which was what I suggested to the hon. Member for Edmonton, seems a perfectly adequate measure of whether a proposal is controversial.
Any figure is subject to the argument that another figure should be given, but that is true of any mechanism for guaranteeing the rights of minorities, which is basically what we are seeking to build into the procedure. We can always argue about what size that minority should be before it gets protection, but a 10 per cent. minority seems perfectly sufficient, and I should like to hear the Government’s argument that it is not.
I intend to come back with a different proposal on Report that will take into account the Minister’s comments. I hope that that will fulfil the criterion of the hon. Member for Christchurch that we should consider both sides of the debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11 - Consultation

Question proposed, That the clause stand part of the Bill.

Christopher Chope: Sir Nicholas, the clause is very important, and I was surprised that the Minister did not want to introduce it. It is the only effective brake that he is offering upon the exercise of the tyranny of the majority. Such a brake is what we are trying to ensure, as the hon. Member for Cambridge referred to—we are trying to protect minority rights. The Minister is saying that the statutory consultation in clause 11 will achieve that. Will he indicate in what circumstances he believes a Minister’s response to a consultation should have to accept the representations that have been made to allow the subject to go to the next stage? I am not suggesting that the Minister would necessarily reply, for instance, “If 95 per cent. of the representations received are in one direction as against another,” but what criteria will he apply to the issue of consultation? How will he assess the weight and merits of the arguments put forward, and whether they should lead to abbreviated procedure or the proposal either being amended or the subject of primary legislation?
I know that clause 11 is explained further by clause 12, but it is incumbent upon the Minister, since he is relying on clause 11 as part of the veto mechanism, to  be a little more explicit about the circumstances in which a public consultation should act as a brake upon the Executive and the exercise of the tyranny of the majority.

Mark Harper: I have three questions on clause 11. First, the Minister talked about the proposals changing the function of a statutory body and subsection (1)(b) states that it would be in order to consult those bodies, which is fair enough. Will the hon. Gentleman comment on the fact that it would be up to the Minister to consult people whom he felt were representative of those bodies rather than the bodies themselves? I am not quite sure where he was driving on that point.
Secondly, exactly what is meant by the Assembly in subsection (1)(c)? Is it the Assembly itself or a Committee of the Assembly? I understand that a Committee of the Assembly tends to take care of this type of discussion. Following the changes proposed in the Government of Wales Bill, is it the Welsh Assembly Executive or its legislative arm?
My third point about consultation follows from the Minister’s helpful letter to members of the Committee about clarifying local acts. The Minister referred to what he said at our sitting last week in column 66 and quoted from “Halsbury’s Laws of England”, which he said confirm that an Act is said to be local if it is limited in respect of area or extent to a relatively small part of the country. The reason for its relevance comes down to the consultation. To give the Minister an example, I choose at random the Forestry Act 1981, where it relates to a statutory body—the Forestry Commission—the Minister would clearly consult the Forestry Commission. The nature of some of these local Acts is that they relate to a particular area and affect everyone who lives in that area. Subsection (1)(e) provides that the Minister must consult
“other persons as he considers appropriate.”

Alison Seabeck: I want to pick up on a point in the text which has been drawn to my attention. Throughout, the Minister is referred to as a male. The Bill refers to “he” and “him” throughout. Is that normal in legislation?

Mark Harper: Sir Nicholas?

Nicholas Winterton: That was not a point of order. I am sure that the Opposition spokesman will reply.

Mark Harper: I understand that when the text states “he” and “him” one is supposed to read “she” and “her” too.
The reason for raising the point about local Acts is that by their very nature they can be extremely important locally and affect the interests of all or many residents in an area. Perhaps the Minister will comment on exactly what implications that would have for the consultation.

David Heath: The hon. Gentleman has done a lot of study on the subject of those Acts. I am less impressed by the definition than he is, as it comes from a text book rather than statute. Does he agree with me that it confirms the Committee’s earlier suspicion that issues of hybridity are very much to be considered when we are dealing with what are described as local Acts? It would be helpful if the Minister were to explain how he will deal with the hybridity issues in future legislation.

Mark Harper: The hon. Gentleman makes a very good point. The next part of the quotation from “Halsbury’s Laws of England” confirms that local Acts comprise all statutes of a local character originating in private Bills. It brings up the subject that we debated at length, but without the clarity of the explanation. It has examples of those authorising the carrying out of work by commercial concerns and therefore raises hybridity issues. Following the Minister’s letter, it would be helpful if he would elaborate on the matter.

Nicholas Winterton: Order. Whatever the hon. Member for Somerton and Frome (Mr. Heath) said, it is my view that hybridity is not involved. I hope that the Opposition spokesman will not trespass too far down that path.

Mark Harper: Thank you for your guidance, Sir Nicholas, but there is no danger of that, as my knowledge of hybridity is much less comprehensive than that of the hon. Member for Somerton and Frome.
The Minister should give us an idea of what scope there is for the Bill to be used to amend local Acts. In a previous debate, he gave the example of harbour Acts, which obviously have a great import for particular localities. What sort of consultation would he think was appropriate under subsection (1)(e)? Will he give an example?

Jim Murphy: I shall of course obey your strictures, Sir Nicholas, and not add to the comments made on hybrid Acts.
Hon. Members will be aware that clause 11 sets out the statutory consultation requirements with which the Minister must comply before making an order. It sets out the first steps in the procedure for making an order, and it is based on section 5 of the 2001 Act, amended to take account of the widened power.
Subsection (1) requires the Minister to consult organisations that
“appear to him to be representative of interests substantially affected by the proposals”.
If proposals relate to the functions of statutory bodies, he must consult them or those persons
“appearing to him to be representative of those bodies”.
The Minister must consult the National Assembly for Wales if a proposal applies to
“any matter in relation to which the Assembly exercises functions”.
I confirm to the hon. Member for Forest of Dean that “Assembly” is defined in clause 30 as the National Assembly for Wales. The Minister must consult the relevant Law Commission if an order implements a commission recommendation. He must also consult
“such other persons as he considers appropriate”.
Subsection (3) provides that if the proposals change as a result of consultation, the Minister must undertake
“such further consultation ... as he considers appropriate”.
That provision is equivalent to section 5(3) of the 2001 Act. The Minister does not have to repeat the whole consultation exercise; the additional consultation should be only what is necessary in respect of those elements of the proposal that have changed, and could involve only those consultees affected by the change.
The consultation process is fundamental. It is the linchpin of the Bill. It will remain a key element, and it must be complied with. The clause ensures that it is not an option but a statutory requirement. That is essential. Consultation will test the quality of proposals and the evidence of their impact, and it will gauge the public’s view of them.
Some points were raised about ministerial conduct in effective consultation. The Government work to a code of conduct to ensure the quality of consultation; it is generally regarded as effective. Given their experience of the 27 orders that been made under the 2001 Act, hon. Members may draw their own conclusions, but I am not aware, from evidence to the Regulatory Reform Committee or from elsewhere, that those principles have not been effective in enabling effective consultation.
I know that the Committee will not wish me to deal with all six subsections in detail. We need to consult widely throughout the policy development process, and at least once, allowing a minimum of 12 weeks for written consultation. We must be clear about the proposals, who may be affected, what questions have been asked and the timescale for responses; ensure that consultation is clear, concise and widely accessible; give feedback on responses and on how the consultation process has influenced policy; and we must monitor Departments’ effectiveness in consultation, including through the use of designated co-ordinators, to ensure that consultation follows better regulation best practice, including the carrying out of regulatory impact assessments when appropriate.
I continue to make the point that we should publish the outcomes of consultations and the responses both in hard copy and on the internet. Indeed, earlier today we confirmed that the consultation responses to the Bill are now available on the Cabinet Office website.
Having dealt with the point about Wales, I shall respond to the additional points that were made. I am not certain that Opposition Members are suggesting it, but it is not a part of the code of practice—nor is it a serious suggestion—that the Government should proactively consult each and every individual who would be affected by a specific proposal. I am not aware that including that in the code of practice has ever been suggested. It is more effective and practical  to consult representatives of those interests, and that is the same approach as the requirement in the 2001 Act. The parties who are consulted will depend on the circumstances and the order.
The 2001 Act provisions on consultation have worked well. The Minister must consult on proposals. Neither the Bill nor the 2001 Act go into detail, but there is guidance on effective consultation practice. The clause sets out the statutory position on consultation and is backed up by the code of conduct and the six principles of effective consultation. That system has operated effectively since 2001 and I am not aware that the Select Committee or anyone else has suggested otherwise.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

David Howarth: On a point of order, Sir Nicholas. I have just seen the letter that the Minister wrote to the hon. Member for North-East Hertfordshire (Mr. Heald) about the definition of a local Act. I see with some distress that the final limb of the definition includes statutes relating to a particular charity and educational foundations and institutions. It surprises me that that is part of the definition of a local Act, and I fear that I should have declared an interest at the start of our discussions, because presumably that would include the Universities of Oxford and Cambridge Acts. May I have your guidance, Sir Nicholas?

Nicholas Winterton: The hon. Member for Cambridge has been truly honourable, as I would expect. Although he should perhaps have declared an interest, he has now done so and it is on the record. I myself am not sure of the entire interpretation of the Minister’s letter but I believe that members of the Committee, including the hon. Gentleman, are behaving truly honourably and appropriately.

David Heath: Further to that point of order, Sir Nicholas, I was grateful for that advice to my hon. Friend. If it is the case that every statute and order that has ever been made is capable of amendment by the Bill, if the Bill is enacted, then inevitably we must all have an interest because every one of those statutes will affect one member of the Committee or another, so I think that my hon. Friend has nothing to fear from not having declared an interest at the start of our proceedings.

Nicholas Winterton: I was seeking to be fairly general in my response. I believe that the hon. Member for Somerton and Frome is right, but in this place it is best to be safe rather than sorry, as we have discovered recently, so let us end it there.

Clause 12 - Draft order and explanatory document laid before Parliament

Question proposed, That the clause stand part of the Bill.

Christopher Chope: I thought that the Minister gave his response to clause 11 on the basis that the argument is just about process. Our concerns, however, are about the substance, and there is nothing in clause 12 that can allay the concerns of those of us who feel that the Minister is giving himself power, in effect, to override substantial objections that are raised during consultation. There is no limit to the Minister’s ability to proceed, notwithstanding what most people would describe as an adverse consultation experience. Will the Minister elaborate on how he envisages that the consultation process will work, and where he thinks, looking at subsection (1), that it would be inappropriate for the Minister to proceed with the making of an order in the light of the consultation experience?
The way in which the clause is drafted at the moment, suggests that the consultation is just a process rather than an opportunity to see if there are substantive objections and, if there are objections, to respond accordingly. [Interruption.]

Nicholas Winterton: Order. May I say, without making any accusations, that I hope that all mobile phones are on silent? I will make no further reference, but I have just heard a tinkle in my ear.

Christopher Chope: I sometimes hear noises in my head. [Laughter.] I think, Sir Nicholas, that it is something to do with anno domini.
Subsection (2)(d) says that the explanatory document must,
“to the extent that it is appropriate to do so having regard to the likely effect of the order, include an assessment”.
And so on. How is the judgment to be made of whether it is appropriate to do so having regard to the likely effects of the order? If the likely effect of the order is to impose substantial costs, the Minister might regard it as rather inappropriate to give an estimate of those costs because it might be embarrassing. Perhaps the Minister could explain how he envisages that the word “appropriate” will operate in subsection (2)(d).
Does the Minister accept that the further wording in subsection (2)(d) demonstrates that far from the procedure being designed to reduce the burdens, as they were under the 2001 Act, there is quite a strong possibility, now admitted on the face of the Bill, that there will be increases in costs resulting from the operation of legislation under those procedures—not only costs, but what are described as “disbenefits”?
Will the Minister explain exactly how those costs and disbenefits will be expressed? Will they be in the form of a cost-benefit analysis? In relation to subsection (2)(f), will he indicate why there is no requirement, should representations made during the consultation process be rejected, for the Minister to set out specifically why those representations were rejected? That is in significant contrast to the provisions in subsection (3) in which the Minister is under an obligation to explain why.
In my submission it is all the more important that, under subsection (2), the Minister should explain why. The powers contained in the Bill are so great; the whole  structure is based upon the Minister having a veto over everything, and only being accountable, in a sense, to himself. We are relying on ministerial good behaviour, and I hope that the Minister will be able to expand on how we will be able to judge that good behaviour.

Andrew Love: I thank the hon. Gentleman for giving way and I apologise for the noise earlier, Sir Nicholas. Let me reassure the hon. Gentleman that some of the concerns that he raised about the orders can be taken on board by the Select Committee, which can carry out further consultation, make judgments about the opposition to an order and report back to the Minister. Although I accept that concerns exist, they will be taken on board as part of the workings of the Act and the Select Committee.

Christopher Chope: I am grateful to the hon. Gentleman for that intervention and I am sure that he is right that the concerns expressed in the consultation would generate the activity to which he referred if he were a member of the Select Committee. The question that concerns me and Committee members more generally is who appoints Select Committees? In effect, it is the patronage secretaries on both sides of the House.

Angela Watkinson: Does my hon. Friend share my concern about the change that the proposed relationship will bring about in the status of Select Committees? Select Committees currently have independence in their investigations, but will that independence be lost and their relationship to the Executive be changed if they are to scrutinise legislation and report to the Minister?

Christopher Chope: That is an important point, which was touched on earlier. The Executive always want to exercise their power with the minimum of interference, so when they realise the extent of the powers that the Bill has given them and that a Select Committee might be a slight brake on the exercise of those powers, there might be an overwhelming temptation to ensure that the appropriate stooges are serving on that Committee. The Minister looks at me in disgust, but in the past the Executive have moved heaven and earth, or provided alternative incentives, if I can put it like that, to relieve a Select Committee Chairman of his or her position and to discourage people from continuing to serve on a Committee. That has happened not only under the present Government, but even—I am not sure whether I shall refer to anything involving you, Sir Nicholas—under former Governments. [Hon. Members: “No!”] Although this may have been for the most innocent of motives, some of the most effective Select Committee Chairmen under the previous Conservative Government were offered Government jobs to encourage them to leave their Select Committee posts and create a vacancy that could be filled by, dare I say it, a Government stooge. You could never be accused of being a Government stooge, Sir Nicholas, and most other members of the Committee would never have come into that category.
Notwithstanding the comments by the hon. Member for Edmonton, the temptation to act in the way I have outlined will be great. That is why, to return  to our earlier debate, the veto must go further than just a Select Committee. If matters are left to such a Committee, the Executive will soon realise that the way to change things is to change its membership.

David Heath: I was amused by the references that the hon. Member for Christchurch made to the Ministers’ misbehaviour. We always hope that Ministers will not misbehave, and our expectations are constantly dashed. Nevertheless, we continue to hope.
I want to ask about the specific application of subsections (5), (6) and (7), which deal with the release of material that derives from the consultation. I might be entirely mistaken, and I will happily accept correction if I am, but I do not recall having seen analogous provisions in other statutes that lay out terms for consultation. I therefore have one simple question. Given that the clause provides for Ministers not to publish representations in response to consultation on certain grounds; is that on the basis that it falls within a category of the Freedom of Information Act 2000 that comprises advice to Ministers? If so, if anyone who writes to a Minister is deemed to be providing advice, that rather extends the definition. Or do other categories in the Act apply? How do the provisions relate to the Act?
Finally, subsection (7) correctly suggests that a Committee of the House can require the disclosure of responses even if they fall within the definitions in subsections (5) and (6). It sounds like a sensible provision, but it changes the relationship between right hon. and hon. Members who serve on a specific Select Committee and general Members of the House, who will not be allowed to read certain information. The negative resolution procedure leaves it open to any Member of the House to table a prayer for the annulment of such an order, but, apparently, not in possession of the same information that one would have were one fortunate enough to be on the relevant Select Committee. That seems a little anomalous and surprising. I would be grateful for the Minister’s explanation.

Mark Harper: Sir Nicholas, your earlier comment about hearing things brought to mind the joke that if one talks to God it is called a prayer, and if one hears voices from God it is time to worry.
When the Minister replied to the Chairman of the Regulatory Reform Committee, the hon. Member for Ellesmere Port and Neston (Andrew Miller), he said that the specific objectives of the Bill were to reduce the amount of bureaucracy around the implementation of European Community law, and to make it quicker and easier to reform outdated, unnecessary or over-complicated legislation. That implies that it will reduce costs and increase benefits or reduce disbenefits.
My hon. Friend the Member for Christchurch has already hit upon this in relation to sub-paragraphs (i) and (ii) of subsection 2(d), in which it is specifically accepted that an order made under the Bill might well increase costs or disbenefits by recognising that the Minister would have to publish an assessment if he felt that to be appropriate. We keep being told that the whole point of the Bill is to deregulate. We have had  some discussion on whether it would be possible to have a deregulatory bias in the Bill that would point in that direction, but this part of the Bill is worrying because it recognises that it might do the opposite of what we are told it is intended to do. Perhaps the Minister will comment on that.
My second point is about subsection (3). I have read it a number of times, and it strikes me that it either is not brilliantly drafted or does not make sense. It says:
“In the case of any provision contained in the order which is made solely for the purpose in section 1(1)(a)”—
which is reforming legislation—
“if the Minister considers that the provision would”
either simplify or modernise
“making the overall effect of legislation less onerous, or ... removing inconsistencies or anomalies ... he must under subsection (2)(b) explain why.”
Surely there is a “not” missing somewhere. The way it is drafted, the measure says that if the order is doing those things, which we would generally consider to be good things, the Minister must explain why. It therefore implies that if the order does the opposite of those things—things that we would consider to be bad—such as making legislation more complicated, un-modernising it, or whatever the opposite of modernising it is, making it more onerous or adding inconsistencies or anomalies, he does not have to explain why. That does not make sense, but it might be a simple drafting error, or there might simply be a word missing. Will the Minister tell us what he means by that?
Finally, I shall pick up on a point made by the hon. Member for Somerton and Frome about disclosure. Subsection (7) talks about disclosure not being affected by Committees. Could the Minister clarify whether those Committees would report on draft orders to the House or to the Minister? If people contributing to the consultation make it clear that they do not wish things to be disclosed and the Committee says that things should be disclosed, does that have any impact on the adequacy of the consultation? The hon. Gentleman said that he had not typically seen such drafting before, so I wonder whether any new issues have been raised about how consultation is conducted.

Jim Murphy: This has been an interesting debate. Hon. Members opposite have posed some interesting questions and I seek to respond in like terms.
I start by agreeing with you, Sir Nicholas, that no one is suggesting that the hon. Member for Cambridge has done anything other than carry out his duties as a constituency MP and Member of this place in an entirely appropriate manner, in respect of the Register of Members’ Interests or declaring an interest. He is right that the letter yesterday to the hon. Member for North-East Hertfordshire refers to particular charitable and educational foundations and institutions. That is helpful and I do not think that any member of the Committee would suggest anything to the contrary on how the hon. Member for Cambridge has conducted himself.
I draw the Committee’s attention to the comments that I made in our second sitting, when in response to the hon. Member for Forest of Dean I said:
“Local Acts cover limited areas and deal with matters such as port and harbour authorities, charities or education institutions.”—[Official Report, Standing Committee A, 28 February 2006; c. 64.]
I am sure that all hon. Members would acknowledge that the hon. Member for Cambridge has acted entirely appropriately and you are right to make that point, Sir Nicholas.
Clause 12 sets out the requirements on a Minister to lay an explanatory document and draft order before an order can be made. That constitutes another key procedural safeguard. The Minister may consider it appropriate to proceed once he has carried out the consultation required by clause 11—my hon. Friend the Member for Plymouth, Devonport has already asked about the gender-specific wording of such provisions, but that is a wider debate and I do not wish to draw the Committee into it. I do not know whether we operated like that when we had our only woman Prime Minister or whether we referred to the Prime Minister then as “he”.

Alison Seabeck: This discussion is entirely relevant given that tomorrow is international women’s day.

Jim Murphy: I do not know how the House or elsewhere plans to celebrate international women’s day, but—this is not the Government’s position—perhaps my hon. Friend would like to launch her one-woman crusade for changing the gender-specific descriptions in legislation. However, that is a much wider issue, which is not before the Committee for discussion this afternoon.
The Minister must lay a draft order along with an explanatory document, which will set out all the relevant information about his proposals as required by the clause. Subsection (2) specifies that the explanatory document must contain considerable detail. That includes an explanation of whether the provision reforms legislation, implements Law Commission recommendations or both, an introduction to the provision and reasons for it, an explanation of why he considers the relevant preconditions in clause 3 to have been met and an assessment of the savings or costs, or the other—elegantly titled—disbenefits or benefits that are expected to arise.

Christopher Chope: The Minister is reading his brief effectively, but I asked whether he could give an example of a situation in which a Minister would not think it appropriate to proceed with the making of an order under the clause.

Jim Murphy: I shall happily give way to the hon. Gentleman on that point later. There is a responsibility to identify the benefits, disbenefits, details of and reasons for any power to legislate that the order confers on the procedural requirement attaching to that power; and details about the consultation that has been carried out, the responses received and any  changes to the proposal made as a result. That will ensure that any concerns about the proposals are identified.
Let me turn to some of the comments that have been made and the matters that have been raised. On the question of the way in which the decision of or assessment by the Minister made after the consultation can be challenged, as I have said, the Minister cannot proceed with a proposal if he is not satisfied that the preconditions given in clause 3 have not been met. If he reaches an unreasonable view as to whether clause 3 conditions are met—an adverse consultation response will be part of the evidence—then he can be challenged in the courts, open to judicial review.
On the additional questions about the costs and the extent to which it is appropriate to give details, in the case of an order with substantial costs it will be appropriate to give details. However, in the case of an order with genuine but less significant benefits, fewer details will be appropriate. They will be available as part of the public consultation. Benefits and disbenefits include environmental and social gains and losses, and such impacts cannot be considered purely in financial terms.
The hon. Member for Upminster (Angela Watkinson) again performed as a speaking Whip. We are delighted to hear from her, but I am glad to note that hers is not a habit that my hon. Friend the Member for Gloucester (Mr. Dhanda) seeks to emulate, except at the end of each sitting. She asked a genuine question and deserves a straightforward response. Her question was on whether the measure might change the way in which Select Committees carry out their duties. All that I would say in response is that the relevant Select Committees, in this place and in the other place, already have responsibilities under the 2001 Act that enable them to carry out investigations into orders and legislation. In that respect, there would be no change in the way in which Select Committees operate. In the House of Commons, a Select Committee has allowed 27 orders to proceed under the 2001 Act. I can reassure the hon. Lady that there is to be no change in the way in which Select Committees operate.
In respect of the just process of the consultation, which was identified by the hon. Member for Christchurch, all consultation responses are given to the relevant Committees of this and another place. Therefore, the Select Committees of this and another place can additionally make their own assessments of the responses to the consultations and the feedback. The results are analysed in the explanatory document, and it is not possible in that context for the Minister to ignore substantive proposals—if he were to do so, the Select Committee members in this and another place would rightly raise their concerns.
On the changes that the Minister might wish to make under this part of the legislation, the Minister could lay a draft order even if there were adverse comment to some of the proposals from some individuals. However, the Committees would be aware of the consultation responses, as I have said, so in some  cases they might take the view that the order suggested by the Minister was not appropriate for the order-making process of the Bill.

Christopher Chope: Everything that the Minister has said so far suggests that he does not envisage any situation in which a Minister would be persuaded by the consultation process not to proceed with the making of a draft order.

Jim Murphy: What I am dealing with today is part of the discussion of the enabling power, setting out the specific principles and the operation of the clause. I have said on several occasions, but it bears reinforcing, that all the matters would be dealt with case by case, through a specific consultation. Today we are considering an enabling power, with respect to explanatory documents that would be laid before Parliament, and the setting of parameters and constraints on the document.
The hon. Member for Somerton and Frome asked about clause 12(5), (6) and (7) and I confirm that those subsections are similar to provisions in the 2001 Act. I am advised that the only change is with respect to taking into account the Freedom of Information Act 2000. I hope that that will reassure the hon. Gentleman. I would say in addition that there is an exemption from disclosure of information under the Freedom of Information Act, where that disclosure would be actionable breach of confidence. I know that the hon. Gentleman will be aware of that. It is reflected in clause 12(5).
Perhaps I may contribute some of my own experience to the debate. In publishing the responses to the consultation on the Bill we have made it clear that only those consultation responses that are not confidential will be placed on the Cabinet Office website. That is the correct and appropriate way to proceed. I recall another experience that concerned consultation on a proposal from the Scotland Office. As a constituency Member I made a specific recommendation based on my considerations, and the opportunity was then available to me to have it dealt with in confidence. I shall not detain the Committee over whether I took it, but the opportunity was there and I am certain it was available to others who participated in the Scotland Office consultation.

David Heath: I do not want to labour the point, but I want to be clear about the relationship with the Freedom of Information Act 2000. The Minister is right that a potential exempt category under subsection (5) is actionable breach of confidence, but under subsection (6) the test is that it appears to a Minister that disclosure would adversely affect the interests of another person. I am not sure that that falls clearly within an exempt category under the Freedom of Information Act. I think that that Act would trump the statutory provision that we are considering, but I leave it to the Minister to re-examine the matter and satisfy himself as to their compatibility.

Jim Murphy: I shall happily do that.
The hon. Member for Forest of Dean talked about hearing things, and then mentioned a missing word; I have no idea whether there is a connection. He asked if a “not” was missing, and I am advised that it is not.

Christopher Chope: Perhaps on reflection the Minister will accept that he has not answered my question about how what is appropriate is to be judged, under subsection (2)(d), and why, where representations set out in subsection (2)(f) are rejected by the Minister, there should not be accompanying reasons.

Jim Murphy: As I have said several times in discussion of clause 12, the Bill is an enabling Bill and this is an enabling clause. I have made the protections that exist clear. The Minister must adhere to the preconditions under clause 3, as I have mentioned. If the Minister violated or ignored those preconditions that would be open to legal challenge. The evidence from the consultation process would be made public, if the respondents so wished, and the Select Committee would receive the information as well. There are important protections and safeguards that ensure that the things that the hon. Gentleman is genuinely concerned about cannot happen in respect of the preconditions and the operation of the clause.

Mark Harper: I raised two points. One concerned the reference to increases in costs and disbenefits in subsection (2)(d)(i) and (ii). In his letter to the Chairman of the Regulatory Reform Committee the Minister said:
“The better regulation aims in Clause 12 give an indication of the intended use of the power.”
The only thing in the clause that I can find that indicates an intended use of the power is the suggestion that costs and disbenefits could increase. That is quite worrying.
Secondly, given that no words are missing and the subsection means what the Government meant it to mean, the Minister’s answer to my question about the drafting of subsection (3) simply does not make sense. As currently drafted it says that if the Minister is reforming legislation under clause 1(1)(a) he has to provide an explanation only if he considers that it would be effectively better. If he thinks that it will be worse he does not have to explain why. We would prefer that he had to explain in both cases or, if in only one case, in the case where he is making a deleterious change to the law, not an improvement. That subsection does not make any sense at all.

Jim Murphy: In respect of the explanatory memorandum that is laid before Parliament, I can do no more than reiterate my comments about the way in which the order, the explanatory document and the related conditions are specified in subsection (2)(a) to (f). On the letter to the Chairman of the Select Committee, I can confirm that when laying a draft order before Parliament a Minister must explain, where appropriate, how an order furthers better regulations in the explanatory document. That is the important point here in terms of simplifying or  modernising legislation, making the overall effect of legislation less onerous or removing inconsistencies or anomalies.
That is the better regulation aim in subsection (3). These aims are statutory expressions of some of the ways in which the Government intend to use these powers. They do not provide specific limits on the power but this is in effect a statement of the intention of how it will be used. The power is intended to be flexible enough to remove regulatory burdens—

David Heath: Will the Minister give way?

Jim Murphy: I am under some pressure to make progress, but I will give way briefly.

David Heath: The Minister appears to be saying that subsections (3)(a), (b) and (c) provide the definition that we sought under clause 1(1)(a) for reforming legislation. The Minister rejected our suggestions. If that is a comprehensive definition it would be helpful if it were written elsewhere in the Bill rather than simply in the notes and the explanatory document and it would assist the Committee considerably to know what the Government’s intentions are.

Jim Murphy: That is a helpful intervention. This is not a closed list. We do not want to recreate some of the technical complexities of the 2001 Act, which is a general assessment of the weakness of that Act. This is indeed the sort of thing that the Government intend to do under this clause. I hope that is a helpful response.

Question put and agreed to.

Clause 12 ordered to stand part of the Bill.

Clause 13 - Determination of Parliamentary procedure

Nicholas Winterton: Before I ask the hon. Member for Forest of Dean to move amendment No. 14, I am not sure whether the usual channels have yet decided at what time they wish to break this evening. From the Chair, I am happy to stay very late to ensure proper debate on this important Bill, but I make those remarks so that the Committee is aware that progress must be made.

Mark Harper: I beg to move amendment No. 14, in clause 13, page 7, line 24, leave out paragraph (a).

Nicholas Winterton: With this it will be convenient to discuss amendment No. 17, in clause 13, page 7, line 26, at end insert—
‘(1A)Unless the Minister is satisfied that there are reasonable grounds for applying the negative resolution procedure or the affirmative resolution procedure, he must recommend that the super-affirmative procedure shall apply to any draft order laid under section 12.’.

Mark Harper: There are many amendments to clause 13. Fortunately, it was possible to group them for the purposes of this discussion. There is a series of amendments standing in my name and that of my hon.  Friend the Member for North-East Hertfordshire and, in the case of amendment No. 6, in the name of the hon. Member for Plymouth, Devonport.

Nicholas Winterton: Order. The hon. Gentleman is jumping the gun. We are on amendment No. 14, with which it is convenient to take amendment No. 17. The group of amendments that includes amendment No. 6 comes next. I ask him to discuss amendment No. 14.

Mark Harper: Thank you for that guidance, Sir Nicholas. The clause deals with the determination of parliamentary procedure, and includes three alternatives: the negative resolution procedure, the affirmative resolution procedure and the innovative super-affirmative resolution procedure. Amendment No. 14 would leave out subsection (1)(a), which is the negative resolution procedure.
The logic for doing that is that it seems sensible to ensure that any proposals tabled under the Bill would at least be debated rather than put through on the nod, thereby making it much more difficult for Members to control them. If the amendment were accepted, we would have either the affirmative or super-affirmative resolution procedure. Given the scope of the Bill and the fact that the protections in procedure and in the scope of the Bill that my party wanted have not been accepted so far—although that may change later—removing the option of using the negative resolution procedure and thereby beefing up the procedure may well go some way towards reassuring us that the uses to which the Bill could be put would be much more modest.
The effect of amendment No. 17 would be that, unless the Minister had specific reasons which he would have to give and which would therefore be justiciable, the super-affirmative procedure would be the default setting for any changes under the Bill. That would be the normal course of events, unless the Minister had good reasons why a lesser form of procedure should apply.
Again, given the scope of the Bill, we believe that that is the right default. It is fairly modest though, because if the Minister is satisfied that there are reasonable grounds he can use one of the other procedures. The amendment would set the default high, and force the Minister to consider the appropriate procedure and to set out reasons why he wishes to use the more straightforward rather than the more onerous procedure. That is not an unreasonable request, and I urge the Committee to accept both amendments.

Jim Murphy: I have a brief contribution to make about the amendments. Time may be a little against us, so I will try to be relatively brief.
As you rightly say, Sir Nicholas, it is appropriate to address amendments Nos. 14 and 17 simultaneously. I am grateful to the hon. Member for Forest of Dean for highlighting through amendment No. 17 that the Minister should have reasonable grounds for recommending negative or affirmative procedures. Ministers are under a public law duty to act reasonably, as we have discussed, and that is a duty that can be subject to challenge by judicial review.  That would certainly extend to the process by which a Minister determines what level of parliamentary scrutiny is appropriate for orders.
Moreover, the Bill already requires a Minister to set out his reasons for recommending a procedure when laying an explanatory document alongside a draft order. If the Minister had no good reason for recommending a procedure, that would be exposed in the explanatory document available to Parliament. The amendment is therefore unnecessary, since it does not change the legal effect of the Bill. In any event, if Parliament does not agree with the reasons given for the Minister’s recommendation, it can require a more onerous procedure to be applied to the order.
Amendment No. 14 would remove the option of a Minister recommending that the negative resolution procedure should be followed for a particular order. It seems unnecessary. The procedure requirements ensure that the scrutiny of orders is appropriate and proportionate, a matter to which the Regulatory Reform Committee has rightly drawn attention in the past. The procedures act as an incentive to Departments to bring forward beneficial proposals and, additionally, help to change the culture across Whitehall. If a Minister considers the negative resolution procedure to be appropriate, it seems somewhat arbitrary to introduce a restriction that would prevent him from putting forward those views to the Committee. In any case, Parliament remains the final arbiter of the appropriate level of scrutiny for orders.

Mark Harper: I ought to have mentioned that these amendments would effectively put on the face of the Bill some of the recommendations made by the Regulatory Reform Committee in its report. Specifically, it was keen that there should be more parliamentary scrutiny of orders. In each of its three recommendations, it said that no order should undergo negative procedures. It recommended that orders should undergo super-affirmative procedures by default. When we come to the later amendments, we will return to the recommendations that the Committee made on the length of time involved. Since the recommendations in the amendments came from the Committee as well as us, even if the Minister does not like amendment No. 17 perhaps it would be worth his reflecting on amendment No. 14, to take into account what we and the Committee have said and to see whether he wants to tighten anything up.

Jim Murphy: When we get to the debate on the other substantial number of amendments, I will be happy to show that the Government are minded to move on some aspects of the Regulatory Reform Committee’s recommendations about the timings and operation of some procedures. However, my point is not intended to criticise the Select Committee, but to make a reasoned case as to why in this instance—unlike many others, which we will discuss later—such an amendment would not be necessary.
I will highlight a couple of examples of where it might be appropriate for the negative procedure to apply. The Regulatory Reform (Trading Stamps)  Order 2005, which eased burdens on the retail sector by updating and harmonising the legal framework regulating the use of trading stamps, might be one such example. The proposals to reduce administrative burdens such as form-filling requirements might be another. It is the Government’s assessment that such non-contentious, straightforward orders could be initially be taken by negative procedure, but the Regulatory Reform Committee, on which my hon. Friend the Member for Plymouth, Devonport serves so well, could in any instance say, “We do not agree. It is not appropriate. The Minister has not kept to the spirit of the consultation or recommended the appropriate procedure.”
The Government feel that, as part of cutting out unnecessary bureaucracy, much of the legislation involved will be non-contentious and cross-party and will be simplification or the removal of form-filling.

Christopher Chope: If that is so, why does paragraph 56 of the explanatory notes, on this clause, refer specifically to the Minister’s view of
“the complexity of the order”
rather than its level of controversy, which is the issue that the Minister has just addressed?

Jim Murphy: Without going over the discussions that we have already had, the level of controversy will be decided on a case-by-case basis.
On the complexity of an order, if it is a straightforward simplification—the phasing of two forms into one or the lightening of the burden on business or public services—the Government’s instinct is to reserve the opportunity to have the negative resolution procedure. However—it is an important “however”—the Select Committees will have the absolute right to reject the Minister’s proposal and recommend the affirmative or super-affirmative procedure. That is a reasonable way to progress, and will still allow the Bill to enable the delivery of minor administrative simplifications by the lightest available procedure, but with the safeguard that the Select Committee can recommend an alternative.
The hon. Member for Forest of Dean has made entirely reasonable points, but given that we will reflect on some of the amendments that we will consider next and based on the undertakings that I have given, I invite him to withdraw his amendment.

Mark Harper: Since the Minister has given those assurances, and we are going to talk about time limits and some of the other things in the next group of amendments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Harper: I beg to move amendment No. 2, in clause 13, page 7, line 30, leave out ‘21’ and insert ‘30’.

Nicholas Winterton: With this it will be convenient to discuss the following amendments: No. 77, in clause 13, page 7, line 30, leave out ‘21-day’ and insert ‘preliminary’.
No. 8, in clause 13, page 7, line 30, leave out ‘21’ and insert ‘60’.
No. 3, in clause 13, page 7, line 39, leave out ‘21’ and insert ‘30’.
No. 9, in clause 13, page 7, line 39, leave out ‘21’ and insert ‘60’.
No. 24, in clause 13, page 7, line 39, leave out ‘21-day’ and insert ‘preliminary’.
No. 4, in clause 13, page 7, line 46, leave out ‘21’ and insert ‘30’.
No. 10, in clause 13, page 7, line 46, leave out ‘21’ and insert ‘60’.
No. 25, in clause 13, page 7, line 46, leave out ‘21-day’ and insert ‘preliminary’.
No. 5, in clause 13, page 8, line 7, leave out first ‘21’ and insert ‘30’.
No. 11, in clause 13, page 8, line 7, leave out first ‘21’ and insert ‘60’.
No. 26, in clause 13, page 8, line 7, leave out ‘21-day’ and insert ‘preliminary’.
No. 6, in clause 13, page 8, line 7, leave out second ‘21’ and insert ‘30’.
No. 12, in clause 13, page 8, line 7, leave out second ‘21’ and insert ‘60’.
No. 7, in clause 13, page 8, line 8, at end insert—
‘(8)The “30 day period” in this section may be increased by not more than 30 days subject to—
(a)a resolution of either House of Parliament, or
(b)a recommendation from the relevant committee of either House of Parliament that is not rejected by a resolution of that House.’.
No. 78, in clause 13, page 8, line 8, at end add
‘(“period A”) unless, before the expiry of period A, either House of Parliament requires (by the same method as is available for requiring a procedure under this section) that period A shall be extended by a further period of days (not exceeding 30) specified in the requirement (“period B”), in which case it means period A extended by period B’.
No. 16, in clause 13, page 8, line 8, at end insert—
‘(8)The “60 day period” in this section may be increased by not more than 60 days subject to—
(a)a resolution of either House of Parliament, or
(b)a recommendation from the relevant committee of either House of Parliament that is not rejected by a resolution of that House.’.
No. 79, in clause 14, page 8, line 20, at end add
‘(“period C”) unless an extension of a further period of days has been required under section 13(7) (“period B”), in which case it means period C extended by period B’.
No. 15, in clause 15, page 8, line 25, leave out ‘40’ and insert ‘60’.
No. 80, in clause 15, page 8, line 25, leave out ‘40-day’ and insert ‘examination’.
No. 19, in clause 15, page 8, line 30, leave out subsection 4 and insert—
‘(4)In this section, “the 60 day period” means the period of 60 days beginning with the day on which the draft order was laid before Parliament under section 12.’.
No. 81, in clause 15, page 8, line 30, leave out ‘40-day’ and insert ‘examination’.
No. 83, in clause 16, page 9, line 6, leave out ‘60-day’ and insert ‘examination’.
No. 84, in clause 16, page 9, line 19, leave out ‘60-day’ and insert ‘examination’.
No. 85, in clause 16, page 9, line 20, at end add
‘(“period D”) unless an extension of a further period of days has been required under section 13(7) (“period B”), in which case it means period D extended by period B’.
No. 82, in clause 16, page 8, line 40, leave out ‘60-day’ and insert ‘examination’.

Mark Harper: Without stepping through all of the amendments in order—I am sure that the Committee will be grateful about that—I shall point out their effect would be to put in the Bill one of the three recommendations that the Regulatory Reform Committee included in its report to the House. The options are mutually exclusive and in ascending order of the Committee’s preference.
The first option is to maintain a full range of procedures and time limits, increase the 21-day time limit to 30 days and provide that parliamentary time limits should be adjustable upwards if a resolution of either House recommended it—a small tightening. The second option is to remove the negative procedure completely and merge time limits. It is clear from the Committee’s report that they were keen for the negative procedure to be removed. We feel that that would be advantageous as it would at least ensure debate on the orders. The Committee also noted that under the 2001 Act there was at least a 60-day period for scrutiny, which in their view was the minimum period necessary. The current Bill provides a smaller period of time, and this group of amendments would change that.
The third option is to remove the negative procedure, and effectively to make the super-affirmative procedure the default setting. That is a more radical possibility and one that the Regulatory Reform Committee invited the House to consider. That would also merge all time limits into a standard 60-day time limit and, again, allow Parliament, on a part 1 order, to adjust upwards the time limit, if a Committee of the whole House, or the House, recommended so.
The Select Committee set out some choices for this Committee to consider. We would prefer to go towards the upper end and tighten things up, unless we were given further reassurances on the scope of the Bill. The Minister indicated that he is prepared to think about some of the issues, and I hope that he will say what he has in mind. I shall leave the matter there and see what other members of the Committee and the Minister have to say before we decide on how we will proceed.

Alison Seabeck: I rise to speak to the amendments, which I will not list by number. They relate to clauses 13 to 16, which I understand, following a discussion earlier today, will be formally considered when we reach the appropriate clauses.
Through my amendments, I seek to probe the Minister on some of the issues flagged up by the Select Committee’s special report produced prior to Second Reading, and to progress them a little. The report raised a number of concerns about the way in which  parliamentary procedure will be determined, including the reduction in the time that the Committee has to scrutinise the RROs, which could, if the Bill is passed unaltered, be less than is currently the case—60 days.
I suspect that the reason for the change to the timetable, as set out in the Bill, that reduces the period for consideration by either House of Parliament to only 21 days, if the Minister’s proposal for the negative, affirmative or super-affirmative procedure is to be followed, is that it is believed incorrectly that the existing parliamentary procedures, rather than the failure of the Government to identify and introduce proposals, have been the cause of the relatively small number of RROs made so far.
Overall, parliamentary scrutiny accounts for only 20 per cent. of that period, when measured from consultation to the making of the order. That means that to cut the time spent on making an order by even 10 per cent., the scrutiny period would have to be cut in half. Clearly, that would undermine effective scrutiny, and in my view, would squeeze the wrong end of the process. It is also worth noting that the Cabinet Office’s website states that it requires 90 days in which to assess practical proposals for regulatory simplification that are submitted by the business, voluntary or community sectors, or public sector front-line staff and any of their representatives. I am therefore not clear on why 21 days is deemed long enough for parliamentary scrutiny.
In addition to seeking an automatic increase from 21 to 30 days for deciding on procedure, as proposed in amendment No. 6, I have sought to use the term “preliminary”, rather than define a specific number of days in order to introduce some flexibility into the process. The first preliminary period would be the period in which the responsible Committee of either House can vary the Minister’s recommendation as to the procedure that can be used. That starts out at 30 days and can be increased by no more that another 30.
The eighth recommendation in the Regulatory Reform Committee’s special report suggested that it would be more appropriate to consider a period up to 30 days. Amendment No. 78 would achieve that, allowing fewer days to be taken if the measure was non-controversial, and be in keeping with the general thrust of the legislation, which is to speed up the whole process.
One of the reasons for trying to put some flexibility into the process, and why I feel that the amendments are potentially more appropriate—that dreaded word “appropriate”—than those tabled by Opposition Members is simply that it is not always clear at first sight whether an RRO will be controversial, and therefore whether there will be a need for a significantly and rigidly extended time limit.
Often it is the public’s response to the consultation that draws attention to the fact that an order might need more detailed consideration and should not be rushed. With the changes proposed in the Bill, there would be no flexibility and inadequate time. For example, the media are only just beginning to understand the constitutional significance of some parts of this Bill. It is evident from my mailbag that the  wider public and other bodies are only now seriously beginning to consider what the Bill could mean some 26 days after the Bill’s Second Reading, which is well outside the 21-day period proposed by the Minister. Therefore, 30 days is a much better starting point, and I hope that he will consider that figure seriously.
If the responsible Committee is to be able to report to the House, it should do so on the basis of informed, not rushed, decisions. It will need to scrutinise the text and consultation responses and may need to return to the relevant Department with further questions for answer. The Department, too, will need time to respond and the notion that one can speed a response from a Government Department in what could only be a few days is fanciful. They rightly need time to consider and to take advice. Compressing the period into 21 days will therefore cause real problems, even when assessing whether the Minister has recommended the appropriate procedure.
It would be far better to consider extending the time allowed for not following the Minister’s recommendation into a 30-day preliminary time limit and then allow for the parliamentary time limits of a part 1 order to be adjusted upwards with a maximum adjustment of 30 days on a resolution of either House or on the recommendation of the responsible Committee of either House.
On the amendments relating to clauses 14, 15 and 16, I propose consideration of the inclusion of the term “examination period” in the Bill. On a negative instrument, that is the period within which the responsible Committee of either House can stop the order being made, and it starts out as 40 days. On an affirmative instrument, it is the period after the end of which the Minister can make the order if both Houses approve of it, and starts out as 40 days. On a super-affirmative order, it is the period within which the responsible Committee of either House can reach conclusions that the Minister must have regard to, and after the end of which the Minister can make the order if both Houses approve it, and it starts out as 60 days.
The eight recommendation in the Select Committee’s special report proposed that if the preliminary period set out in amendment No. 78 to clause 13(7) jumped from 30 by another number of days, the examination period would jump by exactly the same period of days as an automatic consequence. That is achieved primarily by amendment No. 79 to clause 14(4), and amendment No. 81 to clause 15(4) which refers back to clause 14(4) and amendment No. 85 to clause 16(8).
I do not profess to being a parliamentary draftsperson nor do I have the academic background in this field of the hon. member for Cambridge, so I accept that there may be flaws in the drafting of the amendments. However, I hope that the Minister will accept that these changes are a consequence of the flexibility that I want to build in to clause 13. I ask the Minister to consider the value of the amendments together because one does not work without the other. I hope that he will agree that there is a case both for  extending the period available to Parliament for consideration and for viewing positively the flexibility that the amendments allow to speed up the process.
As I said, these are probing amendments. I look forward to hearing the Minister’s comments.

Jim Murphy: In rising to respond to this brief debate, I do not intend to address each of the amendments in turn. Despite your desire that we stay here all evening, Sir Nicholas, it would incur the wrath of members on both side of the Committee if I did so.
I can tell my hon. Friend the Member for Plymouth, Devonport that we will reflect on some of the amendments in the group and the proposal in the excellent report of the Select Committee on Regulatory Reform. Interestingly, four of the amendments on which we wish to reflect were tabled by my hon. Friend, four stand in the names of the hon. Members for North-East Hertfordshire and for Forest of Dean and others, and one amendment appears under all their names. I do not wish to detain the Committee in a discussion of how such things come about.

Mark Harper: I should say for the benefit of the career of the hon. Member for Plymouth, Devonport that we had no discussions in advance. I simply went through and signed lots of amendments, of which hers happened to be one. I did not want to get into trouble with the usual channels.

Jim Murphy: I am sure that my hon. Friend the Member for Plymouth, Devonport is pleased that that clarification has been made. My hon. Friend the Member for Gloucester can relax once more.
I welcome the rationale for the amendments, which support the principle of proportionate parliamentary procedures for orders and which are designed in different ways to ensure that orders are subject to effective and appropriate levels of parliamentary scrutiny. I shall seek to deal with the specific issues raised by the amendments.
A number of the amendments would increase the period available for Parliament to determine the appropriate level of procedure for an order from 21 to 30 days. The recent report by the Regulatory Reform Committee commented that 30 days would be a more appropriate period for completing that initial stage of scrutiny. I reiterate that the procedures in the Bill are intended to provide an effective and, above all, workable mechanism for scrutinising orders. However, in the light of the views expressed in the RRC report and through the amendments, the Government will consider carefully the idea of extending the determination period.
I hope that my hon. Friend the Member for Plymouth, Devonport, whose comments focused primarily on the 30-day period, will feel able not to press her amendments, on the basis that we will reflect on the specific suggestions that she made. However, the Government want to avoid extending the initial  scrutiny period beyond 30 days or, as some amendments suggest, up until the end of the overall scrutiny period. I hope that hon. Members appreciate that requiring the period for determining the parliamentary procedure to last as long as the overall scrutiny period would not be a workable outcome because, in relation to the negative resolution procedure, it would allow no time for hon. Members to pray against an order.
Several amendments would extend the overall scrutiny period for orders. Amendments Nos. 15 and 19 would extend the affirmative resolution procedure scrutiny period from 40 to 60 days. Amendments Nos. 16, 79 and 85 are designed to extend the overall period of scrutiny available for orders by providing that Parliament may require additional scrutiny for certain orders.
Extending to 60 days the scrutiny period for orders undergoing the affirmative resolution procedure is unnecessary. Let us say that Parliament requires a particular order to be subject to a more onerous procedure. It may in all cases require that an order proceed by affirmative or super-affirmative resolution procedure. That is on a case-by-case basis. The super-affirmative procedure available under the 2001 Act has proved to be appropriate for larger or more complex reforms. Committees have used that procedure to assess effectively larger and more controversial reforms. Providing in the Bill for an extension of the overall scrutiny period would compromise the principle of proportionality, which hon. Members on both sides of the House support and which underpins these procedures. The scrutiny procedure should be proportionate to the nature of the reform proposed.

Christopher Chope: Does the Minister think that a good rule of thumb is to ensure that the scrutiny period is proportionate to the gestation period?

Jim Murphy: Many of the orders originate from consultations and recommendations from business, the public sector, charities and voluntary organisations. It would not be appropriate to link the scrutiny period to the gestation period as the hon. Gentleman suggests.
If orders are simple and straightforward, it might be appropriate to deliver them by a more proportionate procedure than is currently possible, and the Bill is designed to provide for that. A straightforward reform like the Regulatory Reform (Local Commissioner for Wales) Order 2004 or the Regulatory Reform (National Health Service Charitable and Non-Charitable Trust Accounts and Audit) Order 2005, for example, should be deliverable by negative or affirmative resolution procedure. The latter order removed an anomaly that had required NHS bodies to prepare two sets of accounts. If Parliament believes that an issue is so clear-cut that there are no points to debate, and the order can be properly considered within 40 days, the negative resolution procedure could be used. If an order can be fully considered within 40 days but a short debate on the Floor of the House and a Division are none the less warranted, the affirmative process could be used.
The review of the 2001 Act found that disproportionate procedures were a disincentive to delivery of smaller or simpler orders. The range of procedures provided for in the Bill is intended to encourage delivery of such orders. Not all draft orders have the impact or complexity of the Regulatory Reform (Fire Safety) Order 2005, and therefore not all orders require 60 days’ scrutiny.
I reiterate that the procedures in the Bill are designed to provide Committees with the flexibility to require a more onerous procedure for a certain order, and so to extend the time available to scrutinise it. Varying the Committee’s flexibility to scrutinise orders undergoing super-affirmative resolution procedure for more than 60 days could also be reviewed when any necessary changes to Standing Orders are discussed.
Committees have previously extended their scrutiny of larger and more complex proposals beyond 60 days, partly through Standing Orders, as with the proposed civil registrations and fire safety RROs. Moreover, the effect of the Committee veto on appropriateness is such that if Committees go beyond the 60-day limit—as they did for the fire safety and civil registration proposals—in practice, Departments will always wait until the Committees have reported before laying the second-stage order. We see no reason for a formal extension of the super-affirmative procedure.

Christopher Chope: Does the Minister recognise that there may be a very large cumulative burden upon the Select Committee? The Executive decide when such orders are first laid, and if a whole lot of orders are laid at the same time, the Committee will still have to deal with them in the confined time limit. Does the Minister not think that the overall burden on the Committee should be taken into account?

Jim Murphy: We have an excellent working arrangement with the Committee; of course we will discuss the issue with it. One of the recommendations in the excellent Select Committee report was an extension of the Committee’s terms of reference. That would not be appropriate for this Committee, but extending the Select Committee’s remit would be an appropriate matter for conversation between the Select Committee and the Leader of the House.
We should develop a situation wherein, when the Government starts statutory public consultation on a proposed order, the relevant Select Committees in the Commons and the other place should receive an indication from the relevant Department. That would be an important way to give Select Committees a sense in advance of the nature of a possible order, the areas that it might cover and the powers it seeks. It may be possible as part of widening the remit of the Regulatory Reform Committee. One of the Committee’s concerns is that it would like to widen its ability to call for evidence and to investigate the better regulation agenda in general.
Giving the Select Committee information from Departments as a norm when those Departments start consultation on a proposed order would be an early indication to those Committees of what orders might come, when and how they might come and their  possible content. That would be an important way to work. Some of that already happens, but we might tighten it up more effectively through Standing Orders or in some other appropriate manner, so that it becomes the norm.
I have mentioned our intention to reflect on nine specific amendments. That is not to suggest that there is no merit in amendments that require a lengthier period. If the relevant Select Committee thinks that an order is wider or more controversial than it is comfortable with, or if it has any other reason for seeking a more onerous procedure, it has the absolute right in every instance to do so.
Mindful of that, the Government wish to reflect on the proposals made in amendments Nos. 2, 3, 4, 5, 6, 24, 25, 26 and 77. Of those nine amendments, four were tabled by my hon. Friend the Member for Plymouth, Devonport, four were tabled by the hon. Member for North-East Hertfordshire and one was a joint effort. Given the assertion and commitment that we will include in the Bill a provision that Select Committees will be able to use an alternative procedure, I encourage the Committee not to withdraw those amendments. Based on the undertakings and understandings that I have given today, we will of course reflect on those nine amendments.

Mark Harper: The Minister’s response was heartening. On a procedural point, Sir Nicholas, as the Minister has agreed to accept the first amendment in the group, amendment No. 2, I presume that I have nothing more to do than to congratulate him on such a consensus.

Nicholas Winterton: The Minister must clarify exactly what he has in mind. If he agrees with amendment No. 2, I shall put the question, and I would expect the Committee to vote for it. I am not entirely sure that the Minister said that, so I ask him to clarify the Government’s position.

Jim Murphy: I invited my hon. Friends and others to withdraw the specific wording of their amendments. I seek to reflect on the proposals made in the amendments and bring back suggestions that would enable them to be enacted in a technically sound and legal manner. That is my intention. We accept the spirit of those nine amendments..

Christopher Chope: The Minister says that he accepts the spirit of amendment No. 2, but it is a simple amendment. It would insert “30” in place of “21”. Does he have it in mind to propose an alternative Government amendment? Why does he not accept that amendment now?

Jim Murphy: There are nine amendments that we wish to reflect upon. The hon. Gentleman knows, and my hon. Friend the Member for Plymouth, Devonport alluded to the fact, that the interactions between the various procedures have to be taken into account—for instance, the negative, affirmative or super-affirmative procedures and the different classifications that my hon. Friend mentioned in respect of preliminary periods and so on. We wish to take a further look at  how clause 13 deals with the specific proposals, including whether to have a 21-day period or a 30-day period. Rather than the piecemeal acceptance of one amendment, we seek to look at the nine amendments in the round to see whether we can deliver a package that is sensible, proportionate and workable. I invite hon. Members to withdraw the amendments so that we can ensure that all nine are workable. We shall make proposals on Report to give effect to them.

Nicholas Winterton: Before I call the hon. Member for Forest of Dean, I advise him that he can do one of two things. He can withdraw amendment No. 2, and rely on the firm assurance given by the Minister; or he can press the amendment to a Division. I invite the hon. Gentleman to clarify the position of Her Majesty’s Opposition.

Mark Harper: I thank you, Sir Nicholas, and the Minister. That was a helpful clarification, even though it prolonged matters. Given the Minister’s clear assurances, and the fact that he has specified nine amendments that he wishes to take back to parliamentary draftsmen so that they can express them more elegantly and check the complex interactions, I beg to ask leave to withdraw amendment No. 2.
Alison Seabeckrose—

Nicholas Winterton: May I help the hon. Lady? Before I ask the Committee to accept the withdrawal of the amendment, she should be reassured that the Minister has clearly indicated that he will consider four of her amendments, which will be taken with the four from Her Majesty’s Opposition and the one that is a joint effort. That makes the nine amendments that the Minister has indicated that he is prepared to consider and to bring back on Report, meeting the spirit of the originals.

Amendment, by leave, withdrawn.

Oliver Heald: On a point of order, Sir Nicholas.

Nicholas Winterton: I shall take a point of order from the distinguished lawyer— sorry, solicitor.

Oliver Heald: Barrister, actually. New clause 3 is about the procedural veto. Given the Minister’s assurance, I am not keen to move it, because I should like to see what his proposals are. In those circumstances, do I have to do anything, or can it just not be moved?

Nicholas Winterton: I can say to the hon. Gentleman that it need not be moved.

Clause 13 ordered to stand part of the Bill.

Nicholas Winterton: That took rather less time than I anticipated. I call Mr. Heald, barrister.

Clause 14 - Negative resolution procedure

Question proposed, That the clause stand part of the Bill.

Oliver Heald: As I explained this morning, we do not believe that law-making powers should be given to Ministers under the negative resolution procedure. Therefore, we wish to divide the Committee on the clause.

Jim Murphy: Responding to that comment, many of the arguments have been dealt with in an earlier debate. Clause 14 sets out the requirements for negative resolution procedure. That will apply to an order that the Minister recommends and with which neither House disagrees. Without going over the debate that we have already had, I have given examples to show why the Government believe that the negative resolution procedure is appropriate. It is in keeping with the sense that procedures of the regulatory agenda are focused and proportionate.
Examples would include removing the need for onerous completion of forms and other such non-controversial simplifications. We have already dwelt on the matter. Of course, the Government absolutely acknowledge and support the principle that the relevant Select Committees of this and the other place will have in every instance, on a case-by-case basis, the ability to reject the negative resolution procedure. However, we should retain the negative resolution procedure for proposals that cannot, on any assessment, be judged to be controversial, such as the merging of certain forms or the requirement that certain public bodies retain two sets of accounts, as I mentioned earlier. Such things clearly make no sense, and there was unanimity on that. Equally, it would make no sense to remove the ability to have the negative resolution procedure to deal with them, and I urge hon. Members to allow clause 14 to stand part of the Bill.

Oliver Heald: I am not satisfied with that. I fully accept the Minister’s point that there is a case for using the negative procedure to amalgamate forms, for example. However, it is not right that a law-making power to sub-delegate should be given under the negative procedure. As far as I can see from our discussion this morning, the Bill provides for such a power. That could happen by way of a negative order, although, as the Minister says, choices would be available to the Minister, and the Select Committee would have its role. However, it is not right to give an order-making power to sub-delegate under a negative procedure. I would therefore like to remove clause 14 from the Bill so that there is no explanation of the negative resolution procedure, which would make it very difficult to implement.

Question put, That the Clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 6.

NOES

Question accordingly agreed to.

Clause 14 ordered to stand part of the Bill.

Clause 15 ordered to stand part of the Bill.

Clause 16 - Super-affirmative resolution procedure

Mark Harper: I beg to move amendment No. 1, in clause 16, page 8, line 40, at end insert—
‘(2A)If during the 60 day period an amendment, or amendments, to an order under section 1 is agreed by—
(a)both Houses of Parliament, or
(b)the relevant committees in both Houses of Parliament,
the Minister shall either—
(a)make the amendment or amendments to the order, or
(b)withdraw the order.’.
Clause 16 refers to the process for the super-affirmative resolution procedure. Under the Bill, all the Minister has to do is to
“have regard to ... any representations”
that he receives and to
“any resolution of either House of Parliament, and ... any recommendations of a committee of either House of Parliament charged with reporting on the draft order”.
If he does, he can simply make an order pursuant to the original draft and lay before Parliament a statement giving details of the representations that he has received. That is not adequate, particularly given the Bill’s scope.
Amendment No. 1 says that if “both Houses of Parliament” or
“the relevant Committees in both Houses of Parliament”
suggest an amendment to the order, the Minister must do one of two things: he must make the recommended amendment or withdraw the order; he cannot simply proceed and ignore the resolutions of either House of Parliament. That provision is much more robust than the one in the Bill. Given the procedural safeguards that we tried to insert at earlier stages, which have not been accepted, the provision would be a huge improvement, giving to Parliament—either the Houses themselves or Committees—the power to insist on amendments. If they were not accepted, the Minister would have to withdraw the order and start all over again. That is the case in a nutshell, and I should be interested to hear whether the Minister either is minded to accept our proposal in total, or thinks that there is some scope for beefing up the clause as drafted.

Christopher Chope: This is a very important amendment, because we understand that so far, the Government have never gone beyond the super-affirmative resolution and insisted on having their way by taking an order to the Floor of the House and pushing it through against the will of the Committee. They may have chosen not to insist prior to this, because they have not thought anything significant enough to insist on, thereby encouraging hon. Members into a false sense of security and into thinking that the Government shall act reasonably and responsibly.
My hon. Friend the Member for Forest of Dean is right to point out that if the amendment were not agreed to, the Government could ultimately insist on getting their way by using their majority on the Floor of the House.

Oliver Heald: I do not know whether my hon. Friend would agree, but the Regulatory Reform Act 2001 was in force and considered to be the main option for the Government for only a short period. Four years later, here we are with a new Bill, so we have seen the operation of that mechanism for only a short time. In those circumstances, is it not important to include in the Bill the protection that one feels necessary?

Christopher Chope: I agree with my hon. Friend, particularly given that the powers in the Bill are so much more extensive than those in the 2001 Act—as we have discussed extensively during Committee. I cannot see why the Minister will not accept the amendments. Perhaps he will accept amendment No. 1. If he will not accept amendment No. 1, it will again indicate that we must be extremely suspicious about what the Minister referred to earlier in Committee as the Government’s “wider ambitions”.

David Howarth: I want to speak briefly in support of the amendment. Throughout Committee, or at least occasionally, the Minister has said that there will be a power to amend orders that come through under the Bill. As I read the clause, that is not the case. The clause allows the Minister, if he wishes, to put forward an amended order, but there is no procedure for this House, either itself or in Committee, to amend the order.
Amendment No. 1 would be a rather moderate addition to the Bill, giving the Government the option of accepting an amendment or withdrawing the order. It would not amount to a full Bill procedure, but it would restore one of the most important aspects of the primary legislation procedure, which is what we are involved in now.

Jim Murphy: In responding to the points and the amendments, I am sure that the hon. Member for Christchurch will be disappointed at having accepted in principle nine of the amendments from the previous debate.

Christopher Chope: Will the Minister give way?

Jim Murphy: No, I am going to make some progress.

Christopher Chope: Why does the Minister say that?

Jim Murphy: Because I am going to make some progress. That is why I said that I am going to make some progress.

Nicholas Winterton: Order.

Jim Murphy: I said that I am going to make some progress, Sir Nicholas, because I am going to make some progress.
In respect of the amendment, we are aware of the need to ensure that Committees are provided with adequate opportunity to reflect upon the merits of proposed orders, and to recommend amendments accordingly. I can assure the hon. Gentleman that the Government would not wish to compromise that arrangement at all. The Bill provides that orders undergoing scrutiny by super-affirmative procedure can be amended, because the relevant Minister can take on board views from Parliament and revise the draft order. Either House can require that the super-affirmative procedure be followed in any particular case, as can a Committee of either House.
However, we do not wish to jeopardise the flexibility that has proved an effective part of the current order-making process. In practice, of course, the Government have rarely had reason to reject Committee recommendations for regulatory reform orders, but we need to avoid situations in which a potentially valuable reform could be lost on the basis of a single proposed amendment. It is important that Departments continue to have the opportunity to consider whether a proposed amendment is technically workable and whether it represents the most effective means of dealing with an identified problem. The Government’s ability to assess the validity and quality of proposed amendments is a valuable part of the parliamentary process.

Mark Harper: If the Minister looks at the amendment to the clause he will see that it would be quite difficult to invoke, because there has to be a recommendation from both Houses of Parliament or from the relevant Committees of both Houses of Parliament, so we are not even talking about just one of the two. The Minister says that it is valuable for the Government to be able to assess the nature of regulations, but it is equally important that the House of Commons and the other place are able to do so, and if they have recommended an amendment it does not seem unreasonable that the Government should either have to accept the amendment or withdraw the order. For the Government to pursue their original intention when both Houses of Parliament have said otherwise seems unnecessarily dictatorial.

Jim Murphy: I have already given assurances that the Government will not seek to force through an order where a Committee has proposed an amendment. As was the case under the 2001 Act, we wish to retain the flexibility to ensure the quality of orders.

Oliver Heald: Will the Minister give way?

Jim Murphy: I am going to make some progress. The amendment would bind the Government to accept any amendment to a proposed order and would not give the flexibility that has already worked so well under the 2001 Act. The Delegated Powers and Regulatory Reform Committee demonstrated the merits of the current system during the scrutiny of the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003. The Committee expressed concerns about proposals to downgrade the process of court approval for certain lease agreements between tenants and landlords, and specifically questioned whether the proposal would maintain necessary tenant protection. The Department undertook further research and was able to allay those concerns, with the result that the order was successfully made.
The flexibility of the current arrangement is a valuable and important part of the order-making process, and for the reasons I have given I am not minded to support the amendment. On the point made by the hon. Member for Forest of Dean about the wording whereby the Minister must have regard to representations, that is the same as in the section 8(4) of the 2001 Act. I hope the fact that we are replicating the 2001 Act helps him to see the context.

Mark Harper: The Minister is in danger of repeating the point that there is replication of the 2001 Act. That is the case, but the point is that the Bill is much wider in scope, and because of that we want a more robust safeguard. That is exactly why we have tabled the amendment.
It is unlikely to happen often that both Houses of Parliament, or both of their relevant Committees, insist on an amendment to an order. The Minister has been able to suggest that other proposed amendments to the Bill have been poorly drafted or relatively flippant. It will not happen often that a Minister proposes an order and both Houses of Parliament vote that it should be changed, but it seems to me that when it does it would be unacceptable for the Minister to proceed. The Minister said that he would not intend to push things through in that case. If that is true, why does not he allow it to be set out in the Bill? If he finds the drafting of the amendment not to his liking—despite the fact that it was drafted by my hon. Friend the Member for North-East Hertfordshire, the barrister—he is perfectly entitled to say, as he generously did on a previous provision, that he accepts the spirit of the amendment but wants to give it to parliamentary draftsmen to examine, so that he can return with a Government amendment that may be more elegantly drafted.

Jim Murphy: I am happy, again, to give the additional reassurance that the Government would not push through an order in the face of opposition from the Committees. That is, I understand, an understanding deriving from the 2001 Act. There is no evidence that the current procedure, whereby Committees can make recommendations and Ministers and Departments can reflect on them, make adjustments and offer reassurances to the Committees, has not worked well. However, the amendments  before the Committee would make it compulsory to accept amendments. An order could be lost if the Minister or Department did not accept the amendment from the House or the Committee. Ultimately, the Committee itself could reject an order, on the basis that it would suggest amendments and the Government would have to respond to them.
Committees have rejected previous orders. Civil registration is one matter on which the Regulatory Reform Committee rejected an order. The Committees have powers, but the current system has worked well. As an example, the Regulatory Reform (Business Tenancies) (England) Order 2003 enabled the process to work very well.

Christopher Chope: Will the Minister give way?

Jim Murphy: No, I am concluding; I am on my last sentence.
On the basis that I have outlined, the Government would not be minded to support an amendment that would make it compulsory to accept amendments from the relevant Select Committees or the House. It would be unnecessarily prescriptive and could jeopardise an entire order for the sake of a specific amendment. I again give a reassurance that the Government would not push through an order in the face of opposition from the relevant Select Committees charged by the House of Commons to carry out that task.

Mark Harper: I did not necessarily expect the Minister to accept the amendment as drafted, but I am disappointed that he did not even suggest that he might consider the drafting of something that accorded with it in spirit. If both Houses of Parliament or both Committees of both Houses of Parliament insist that an order needs to be amended in a particular way it is the height of arrogance for a Minister to insist on pushing the measure through. For that reason we want to press amendment No. 1 to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

NOES

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Christopher Chope: We could have avoided this if the Minister had accepted my intervention earlier, but he was not prepared to justify his assertion that I was  disappointed with any concessions that the Government were making; I am only disappointed that their concessions are so modest in the face of the grave powers that they are taking.
On a very small point, when the Minister appeared before the Procedure Committee, he was asked why the wording in clause 16 was slightly different from that in the predecessor 2001 Act. He was slightly taken by surprise, and Ms Jennings, who was there supporting the Minister, said that the Minister would check up on the matter and report back to the Committee. I am not aware of having seen a response to the Procedure Committee in light of that exchange; I wonder whether the Minister could enlighten us about that.

Jim Murphy: Just to reassure the hon. Gentleman, I was not suggesting that he was unhappy that the Government were accepting some amendments; I was suggesting that he would be unhappy that we were not accepting the amendments to the previous clause. Perhaps that was a misinterpretation because of my accent, or perhaps he is hearing things again.
I will investigate whether the response to the question that the hon. Gentleman mentioned has been given to the relevant Select Committee, and will perhaps bring that to the Committee’s attention. I will certainly investigate his point.

Question put and agreed to.

Clause 16 ordered to stand part of the Bill.

Clause 17 - Calculation of time periods

Question proposed, That the clause stand part of the Bill.

Oliver Heald: I just wonder whether the Minister could confirm that, in calculating the periods of time referred to in clauses 13 to 16, time does not run in the vacation. Sometimes, one reads these things and finds that they have almost the opposite effect to what one thought. It will be extremely helpful to know what is meant.

David Heath: I am fairly clear that the recess, being a period during which the
“House is adjourned for more than four days”,
would not be counted, but what concerns me is what apparently would be counted. A “period of days” could be calculated either side of a Prorogation or Dissolution. I am extremely concerned that orders might be laid before a Dissolution, and then picked up in the opening days of a new Parliament, as Parliament sits, and while swearing in takes place. The clear implication of the clause is that orders can persist over a period of Dissolution or Prorogation; it cannot be interpreted in any other way. I have to say that that is not acceptable. The Minister will have to go away and come back with better wording, because I certainly am not about to accept the principle that such orders could persist during the Dissolution of Parliament. That would be a constitutional outrage, frankly, and I  do not believe that it can possibly be intended, although I am quite incapable of reading the words to mean anything else.
My other point is about the interrelationship between the provisions in this part of the Bill on legislative procedure, Standing Orders and rules of the House. I would like an assurance from the Minister that he has had appropriate discussions with the Leader of the House regarding draft changes to Standing Orders being prepared and that we may have sight of those in the House in the context of Report stage, because they refer to our House. We should be clear what the consequential changes in Standing Orders would be to give effect to the legislative procedural proposals that fall within the Bill.

Mark Harper: The hon. Gentleman makes a good point. It is interesting that in its report, the Regulatory Reform Committee detailed some of the changes that it thought were consequential on these changes. It would be helpful if the Minister indicated whether he wanted those changes, or whether, having thought about it and discussed it with the Leader of the House, there might be other changes. As the hon. Gentleman said, it would be helpful to have those matters laid out as we consider the rest of the Bill before Report.

David Heath: I am grateful for the hon. Gentleman’s support, but this is more than important—it is essential. I am not a great buyer of pigs in pokes, and I am rather fed up with the Bill, because I am being asked to buy a great number of pigs in a substantial number of pokes. Will the Minister remove at least some of the aforesaid pigs from their pokes and give us a clear assurance that if the Leader of the House has not done this work already, he will do so as a matter of expedition and will, perhaps, write to you, Sir Nicholas, as Chairman of this Committee, and Committee members explaining the draft proposals for the changes in Standing Orders, because that is absolutely instrumental to our understanding of the safeguards that are to be put in place as a result of the Bill?
I repeat the point, which has repeatedly been made throughout our discussions on the Bill, that we are not prepared to accept assurances as to what will be parliamentary procedure. We want to see it in black and white and make sure that it accords with our expectation of what will happen in practice when dealing with orders of this kind.

Christopher Chope: The hon. Gentleman makes a good point. Perhaps I may reinforce it by reminding hon. Members that the Procedure Committee raised with the Minister the issue of why the Government were precluding the House authorities from deciding that a different Committee might deal with the procedural side of the orders, as opposed to the substance of the orders. Rather than leaving that open to the House authorities and Standing Orders to resolve, the Minister is taking powers in the Bill to require that  there should only be one Committee deciding the procedure and the substance of the orders. I hope that he will take the opportunity of this wide-ranging clause stand part debate to expand on his thinking on that.

Jim Murphy: The hon. Member for Somerton and Frome, with his pig in a poke comparison, refers to his previous occupation. I think that he was a pig breeder in a previous life.

David Heath: It was not an occupation, but a vocation.

Jim Murphy: That was before he became an optician. I have no idea. Certainly, that is where he gets his analogy from.
On the point made by the hon. Member for Christchurch, it is still the Government’s opinion that the assessment of the correct procedure to be followed and the policy content of an order best rests with one Committee.

Christopher Chope: But why should that be for the Government to decide, rather than the House?

Jim Murphy: Because in our view, that is the most effective way to deliver this enabling Bill. The Regulatory Reform Committee will be able to assess the policy content of the proposed order. It will, based on its assessment of that content, recommend which procedure should be followed, rather than making an assessment of the policy content and passing the procedural assessment and recommendation-making power to another Committee. That is simply the most effective way for us to work in the House.

Mark Harper: There is a good point to be made here about what the Bill will be used for. Given that the Minister says that it is for deregulation, it would be perfectly appropriate for the Regulatory Reform Committee to consider the nature of proposals. If the Bill is used, as its scope allows it to be used, for things other than deregulation, it is not entirely clear whether that Committee is the right Committee, or whether it would have the competence to assess matters outside its scope of policy.

Jim Murphy: The hon. Gentleman, characteristically, makes a reasonable point. I touched on this issue in some of the evidence sessions, I believe. If not, I make it clear now that it is for the House to decide which Committee is appropriate, but we believe that the same Committee should deal with both procedure and policy content. I hope that that helps the hon. Gentleman.
I move to the point about Prorogation. I think that the hon. Member for North-East Hertfordshire used the term “vacation”; regardless of the legal background, I am not sure that Parliament has a vacation. As far as recesses are concerned, the clause is fairly similar to the relevant clause—clause 10, I think—of the 2001 Act, but is slightly more open or generous in that it refers to “either House”. Clause 17 sets out the method for calculating the length of the parliamentary scrutiny period. When calculating the time periods mentioned in clauses 13 to 16, any time in  which Parliament is dissolved or prorogued, or in which either House—here is the distinction from the 2001 Act—is not sitting for more than four days does not count towards that period. That approach is the same as that in the 2001 Act to which I have alluded. I hope that that reassures the hon. Member for Somerton and Frome. If it does not, I shall seek to provide him with any additional information that he requests.

David Heath: I say, in parenthesis, of my pig-breeding that my Tamworths were not so much an occupation as a regulatory burden.
The Minister simply read out what is written in the clause as a reassurance, but it does not reassure me. I accept entirely his preparedness to reconsider it and write to me again, but there can be no question of time during which Parliament is dissolved counting as part of the time period for the benefit of clauses 13 to 16, because the orders fall. Therefore, the reference to time in which Parliament is dissolved is either superfluous or sinister. Either way, it should not be there. I do not believe that an order can persist during a period in which Parliament is dissolved. It should not persist during a period in which Parliament is prorogued, but that is a more arguable case. The fact that the Minister finds it necessary to say that those time periods will not be counted for the purposes of totting up the periods under these clauses suggests that someone, somewhere believes that they will.
Mr. Murphyindicated dissent.

David Heath: The Minister shakes his head. That is a hopeful sign that, once again, what the Bill says is not what he intends. If that is the case, he will need to write to us to explain why it says what it says and how it could be construed in any other way than that which I have suggested. I do not intend to pursue this any further now, but I do expect the Minister to write, as promised, to explain the purpose of those words in those circumstances.

Jim Murphy: I do not want to dwell on the hon. Gentleman’s previous role as a pig farmer; I am a vegetarian, so I do not want to get involved in such a conversation. I am vegetarian because I worked in a  slaughterhouse that slaughtered pigs, so there is one connection between him and me. Of course I will write to him, but the relevant provisions are a restatement of the 2001 Act position. It has worked well and there has been no evidence to the contrary. In fact, the provisions go wider than the 2001 Act because they refer to either House. That is an important additional protection, but I will of course take up the hon. Gentleman’s invitation to correspond with him and copy in all members of the Committee.

Question put and agreed to.

Clause 17 ordered to stand part of the Bill.

Clause 18 - Interpretation of Part 1

Amendment proposed: No. 61, in clause 18, page 9, line 35, at end add—
‘(2)In section 1, “changes” means only those changes that are reasonably related to developments in the common law since the date of the Law Commission’s Recommendation.’.—[Mr. Heath.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

NOES

Question accordingly negatived.

Clause 18 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Dhanda.]

Adjourned accordingly at seventeen minutes to Seven o’clock till Thursday 9 March at Nine o’clock.